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September 2, 2007

Another challenge to prosecutors' capital discretion

This local article from Kentucky discusses another new effort to challenge the death penalty by attacking the broad discretion exercised by prosecutors in capital cases:

The most recent possible challenge to Kentucky’s death penalty came in the form of a motion in Hardin Circuit Court earlier this month to have Kentucky’s death penalty ruled unconstitutional.  Attorney Vince Yustas, who represents convicted murderer Michael St. Clair, said his argument against the death penalty never has been made in Kentucky. He claims commonwealth’s attorneys across the state have “unbridled discretion” when deciding whether to pursue the death penalty.  “Whether or not to seek the death penalty rests entirely in the hands of individual commonwealth’s attorneys,” Yustas said in a memorandum filed Aug. 20 in Hardin Circuit Court.

As detailed in posts linked below, similar arguments have been advanced recently in a number of other settings:

September 2, 2007 at 02:10 PM | Permalink


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The differences in capital prosecutions between jurisdictions generally gets labeled as geographical disparity, but most often it's the result of prosecutorial discretion; the different standards that prosecutors use in charging decisions. Some are sim... [Read More]

Tracked on Sep 2, 2007 10:49:46 PM


Doug, I think Apprendi implicates this issue and weakens the defendant's argument. Before Ring I believe there was a legitimate argument that a prosecutor's decision as to whether to expose a def to death as opposed to life upon conviction of first degree murder was a violation of separation of powers. Only the legislature can decide the parameters of punishment for a particular crime.

But, now that Capital First Degree Murder is a greater offense than First Degree Murder, with the differentiating element being the finding of one aggravator, the prosecutor is deciding to try the def for one crime rather than another. It has always been within the province of prosecutors to decide whether to try someone for a lesser or greater crime arising out of an incident.

So, what I think was a good argument before Ring is now weaker. There has been very little litigation, or commentary on Apprendi's impact on capital litigation, and I think this case illustrates that there are a large number of Sixth Amendment issues lurking in the death penalty context.

bruce cunningham

Posted by: bruce cunningham | Sep 2, 2007 6:46:47 PM

This "good argument" has been around for a long time, long before Ring, and to the best of my knowledge it has been rejected in every state where it has been advanced. Given the anti side's propensity to throw in everything including the kitchen sink, I would be surprised if there is any state where this hasn't been argued before.

Posted by: Kent Scheidegger | Sep 3, 2007 11:49:45 AM

Kent, in North Carolina this argument (meaning that the exercise of discretion by a prosecutor to decide whether to try a case capitally or not if there is evidence of an aggravating factor is improper as a violation of separation of powers) was the law until about ten years ago. Back then a defendant could not plead guilty to first degree murder under a plea bargain and receive life if there was evidence of an aggravator.

When the law changed we capital defense lawyers were conflicted because it immediately opened up the option of many more pleas of guilty to first degree and life. On the other hand, in individual cases the decision to prosecute for life or death became much more capricious, depending on such things as when the DA was up for election again, what the victims' families wanted, and in one case I was involved in, what the impact would be on negotiating future cases of murder if the DA gave my client a plea and life in the current case. (in my view Defendant A' sentence should not be dependant upon the possible impact in future Defendant B's case, which hasn't even been committed yet)

My point is that Ring has , in my opinion, eliminated the separation of powers argument because now the decision to prosecute capitally is not a decision based on potential sentence but is a decision of which of two substantive crimes to proceed on.


Posted by: bruce cunningham | Sep 3, 2007 2:51:24 PM

Prosecutors can just flip a coin, heads death, tails life in prison.

Posted by: bruce | Sep 3, 2007 2:58:27 PM

"Kent, in North Carolina this argument (meaning that the exercise of discretion by a prosecutor to decide whether to try a case capitally or not if there is evidence of an aggravating factor is improper as a violation of separation of powers) was the law until about ten years ago."

OK. I understood "this argument" to mean that this issue rendered the state's death penalty law unconstitutional. That clearly wasn't the case in North Carolina in the period you refer to, as a number of executions were carried out (page 15 of the following document):


Posted by: Kent Scheidegger | Sep 3, 2007 3:29:32 PM

Kent, the reason that North Carolina's death penalty was not unconstitutional as applied back when prosecutors had no discretion to take a plea to first degree murder and guarantee a life sentence when an ag exists is because prosecutors didn't do it. (except once, which when I challenged it, the court held the claim was procedurally barred. The judge who heard the motion acknowledged that the result of a prosecutor accepting a plea to first degree and life with an ag would be to render the NC capital scheme unconstitutional.

I think our discussion, (which, by the way, I always enjoy with you) has gone on a tangent departing from the original comment about Ring hurting the defendant's chances on his motion. My original comment was geared toward the proposition that Apprendi has implications in the capital context which are not being examined.

Do you agree or disagree that, post-Ring, First Degree Murder is now a separate offense from Capital First Degree Murder? Most of the judges I try capital cases in front of, (like the one I have been trying now for three weeks) agree with that notion.


Posted by: bruce cunningham | Sep 3, 2007 8:17:18 PM

I do not agree that capital murder actually is a higher degree of offense unless the state legislature chooses to make it so (e.g., Texas). However, Ring requires that the state meet the same requirements regarding jury trial and burden of proof as if it were. A plurality thought the same was true regarding double jeopardy in Sattazahn, but we'll just have to stay tuned to see how that works out.

Ring does not change substantive state law. It only changes the procedural requirements that are deemed to be required by the Fifth and Sixth Amendments. The notion that Ring had changed the elements was the Ninth Circuit's theory in Summerlin, and the Supreme Court made short work of it.

The status of "special circumstances" as a sentencing factor versus a higher degree of offense has never mattered in California, the state I am most familiar with. The statute has always required jury trial and proof beyond a reasonable doubt, and the discretion of the prosecutor to allege specials or not is not considered a separation of powers problem.

Posted by: Kent Scheidegger | Sep 3, 2007 10:39:12 PM

I believe Apprendi/Ring/Blakely stand for the proposition that it doesn't matter what the legislature does, intends to do , or says it has done. Since the current position of a 6 to 3 majority of the Court says that their concern is "one of effect, not form", seems to me Capital First Degree Murder is a separate, greater crime or not according to what the Court says, not the legislature. And if the Court is following Justice Scalia's lead, which I think it is, in Part III of his Sattazahn opinion, he draws a clear distinction between "murder simpliciter" and "murder with one or more aggravating factors" as being separate crimes.

Posted by: bruce cunningham | Sep 3, 2007 11:08:22 PM


The federal courts will treat murder with [aggravating, special, whatever] circumstances like a higher degree of murder for the purpose of federal constitutional requirements relating to offenses. It does not follow, though, that the state must treat it as such for the purpose of a requirement of state law. So, back to your original point, Ring only weakens the argument if (1) prosecutors have more discretion under state law in alleging elements than they do alleging sentencing factors, and (2) the state courts choose to go along and treat murder + circumstance as a higher degree of offense for the purpose of that state law, which they are not obligated to do.

As I read the article linked in the main post, the argument being made in Kentucky does not involve premise (1), but is just a Furmanesque "unbridled discretion" argument.


Posted by: Kent Scheidegger | Sep 3, 2007 11:58:02 PM

Kent, thanks for the conversation. It is very helpful because I am writing a two part law review article on Apprendi's impact on NC's structured sentencing law, which will be published in November, and Apprendi's impact on capital litigation, published in the spring.

While states don't have to treat Aggravated First Degree Murder like a new crime for purposes of state law, they have to for purposes of federal law, which of course the states must follow.

I'm not following your comment about "alleging elements' versus alleging sentencing factors. As a matter of federal law all elements do not have to be alleged in the indictment in state prosecutions. (despite O'Connor's slip of the tongue in her Apprendi dissent) Hurtado v California. Sentencing factors don't have to be alleged under either state or federal law because they don't increase the potential punishment to which the def is exposed above the Blakely max.

California law sounds similar to North Carolina law except you say special circumstances and we say aggravating circumstances. Under a conviction of first degree murde alone the maximum sentence to which the def is exposed is life. Therefore, any fact, whatever the legislature wants to call it including Mary Jane, which increases the defendant's exposure to punishment is an element of a new and greater offense. Isn't that what Apprendi is all about?

Do you believe Apprendi/Ring was about capital SENTENCING? If so, how do you square that with Scalia's statement in Ring that "the unfortuante fact (for Justice Breyer) is that today's decision has nothing to do with jury sentencing."?

Thanks for the stimulating conversation, it is very helpful as I formulate an outline for my article. Judges are already getting on board in NC that Aggravated or Capital First Degree Murder is a new crime. For example, the Rules of Evidence are now being applied in ag determination but not mitigator determination because the determination of an ag is a second trial for a greater crime and mitigator determination is a pure sentencing matter.


Posted by: bruce cunningham | Sep 4, 2007 8:24:23 AM

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